Review of provisions in the Bill for mitigating sexual harassment in the workplace.

If a person, without the consent of a woman, touches or attempts to touch her sensitive organs, takes off her inner garments, takes her to an unusually lonely place, makes her touch his sexual organ, uses vulgar words or shows her such pictures, teas

Sexual misconduct comprises of sexual acts performed on someone against their will. According to a study conducted by the Forum for Women, Law, and Development for the International Labour Organization, sexual misconduct in the workplace is a serious problem in Nepal with an estimated 48.4 percent of working women facing sexual harassment in their respective workplace. What is more worrying is that the majority of those facing such misconducts reported to have kept silent about it. The report concludes by stating that the prevalence of such incidents is detrimental to both victims as well as work environments. Finally, the report also points out that the lack of effective legal provisions and internal mechanisms for regulation within offices are responsible for the rampancy of sexual misconduct in the workplace.

Interim Constitution of Nepal (2007):

Article 13: (1) All citizens shall be equal in the eyes of the law. No one shall be deprived of equal protection of the law. (2) In applying the common law, no citizen shall be discriminated against on the basis of religion, caste, ethnicity, origin, language, and/or ideological convictions. (3) The state shall not discriminate between its citizens on the basis of religion, caste, ethnicity, origin, gender, origin, language, and/or ideological convictions. Article 12: (2)(f) the freedom to be employed or run a business. Article 20: (1) No one shall be discriminated against for being female. (3) No physical, mental, or any other form of violence shall be inflicted upon any woman. Article 29: All individuals shall have the right to be protected from exploitation.

Current Provisions

Section on intention of sex in the General Code:

If a person, without the consent of a woman, touches or attempts to touch her sensitive organs, takes off her inner garments, takes her to an unusually lonely place, makes her touch his sexual organ, uses vulgar words or shows her such pictures, teases or harasses her sexually, shows any unusual behaviour like holding her with the intention of having sexual intercourse, the person will be deemed to have committed sexual harassment. The offender shall be liable to punishment by imprisonment for a term not exceeding one year and a fine of up to ten thousand rupees. The victim of such an offence shall be entitled to a reasonable compensation from the offender.

Section on court proceedings in the General Code:

(134) In relation to any accusation against a woman, her inquiry shall not be conducted in an inappropriate manner.

Libel and Slander Act (1959):

If a person, with the intent of defaming any woman, says anything in a manner that she can hear it, or expresses any kind of vulgar word, object, or gesture, or undermines her privacy, such actions will be considered as crimes.

Some Public (Crime and Punishment) Act (1970):

2(c) The disruption of public peace by putting on obscene shows, or using obscene speech, words, or gestures in public places, shall be considered a public crime.

2(c1) To print or publish any obscene materials by using obscene language or by any words or pictures which express obscene ideas, and to exhibit, sell, or distribute such obscene publications in public places shall be considered as public crimes.

2(g) To insult a woman in a public place by molesting her is a crime.

Electronic Transaction Act (2008):

(47) If any person publishes or displays any material in the electronic media which is prohibited by the prevailing law to publish or display, which may be contrary to the public morality or decent behaviour, which may spread hate or jealousy against anyone, or which may jeopardise the harmonious relations subsisting among the peoples of various castes, tribes, and communities, he or she shall be liable to punishment with a fine not exceeding one hundred thousand rupees or with imprisonment not exceeding five years or with both.

If any person commits an offence referred to in sub-section (1) time to time, he/she shall be liable to a punishment one hundred and fifty percent times the previous punishment.

Directive order from the Supreme Court regarding sexual misconduct (Sharmila Parajuli and others vs His Majesty’s Government and others, Writ No. 3434 (2002)):

“It shall be deemed that a directive order has been issued to the defendant to make appropriate provisions and build momentum to create appropriate legislation for addressing the problems of sexual misconduct, making sure to conduct appropriate studies so that all aspects can be included.”

The Convention on the Elimination of All Forms of Discrimination against Women (1979):

State parties shall take appropriate steps to end discrimination against women in a timely manner, and include the principle of equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle. (Article 2)

States Parties shall take all appropriate measures, including legislation, to suppress all forms of trafficking of women and exploitation. (Article 6)

States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights. (Article 11)

The convention has defined discrimination in Article 1, which includes gender based violence, physical, mental, and sexual torture, threat of harm, forceful behaviour, and the restriction of other freedoms.

Review of provisions in the Bill to mitigate sexual misconduct in the workplace (2013):

From all these bits and pieces of legislation stated above, it is evident that there are laws to address gender violence and sexual misconduct. Nonetheless a comprehensive document is lacking. Currently, a Bill to address sexual misconduct in the workplace has been registered with the parliament secretariat. Many of the provisions in the Bill are positive, but the addition of a few more provisions seems appropriate for the creation of equal employment opportunities for female employees.

The definition of workplace needs to be broadened: While the proposed Bill includes an elaborate definition of workplace, the scope of the definition is limited to registered institutions and organisations. But agricultural workers, domestic workers, unregistered construction workers, and workers in the unorganised sector are often victimised by sexual misbehaviour. The Bill fails to address the work environments of such workers, in addition to incidents of sexual misconduct faced while travelling to and from the workplace.

India’s sexual harassment of workplace (prevention, prohibition, and redressal) Bill 2012 is far more progressive in this regard, addressing the situation of domestic workers as well. If a law is to be applied to an entire country, it should be applied justly and equally to all its citizens. The Indian Bill has broadly defined the workplace to encompass the unorganised sector. The provisions in that bill even take into account the potential harassment of workers while travelling to and from the workplace. In light of this, it seems appropriate to broaden the definition of workplace in our own legislation.

Electronic media and information technology: The proposed Bill states that sexual harassment can be physical, gestural, verbal, written, etc. But it fails to specify that information technology can be used in sexual harassment. For example, sexual harassment through email or messaging is currently beyond the scope of the Bill. With the development and proliferation of technology, it seems appropriate to include such provisions in the Bill.

In section 6 of the Bill, the word grievance should be replaced with complaint.

Increase in punishment: Section 4 of the proposed bill establishes the touching of extremely sensitive organs as sexual misconduct, but the punishment for such behaviour seems minimal. Because this form of harassment can ultimately lead to rape and since this type of misconduct is generally inflicted by senior employees on subordinates, this is a very delicate subject. Thus, it is imperative to increase the punishment or devise more appropriate types of punishment based on the offense:

a) give warning

b) stop increments in grade

c) halt increments in salary

d) stall promotions

e) suspend offending employees

f) terminate their tenure service

Compensation: Section 13 of the Bill makes provision for compensating victims of sexual harassment. But it does not specify the appropriate body or authority for overseeing the compensation process. Additionally, it does not establish the appropriate amounts for compensation, thus leaving it to the digression of authorities to decide what is appropriate.

Settlement: Section 8 of the Bill makes a provision for a victim and offender to make amends and settle a case. But, since sexual harassment is an extremely sensitive issue that can lead to rape and because it tends to prevail in hierarchical relationships in the workplace, settlements should not be encouraged and the provision should be removed altogether. Perhaps an exception can be made for when an offender ask for forgiveness and the victim is willing to forgive.

Expulsion, demotion: A provision is needed for administrations to expel or demote an offender from and within a place of employment. Consequently, 9(8) should be removed. Transferring an employee for sexual harassment does not constitute a punishment. It simply encourages such behaviour.

Privacy: A case filed under sexual harassment should be taken forward while maintaining the privacy of the victim during investigation and prosecution.

Closed hearing: The current provision under 15 (2), which states that a closed hearing can be arranged if a victim sends a written request, should be replaced with a provision that establishes closed hearings as the norm in cases related to sexual harassment (unless a victim sends a written request for an open hearing).

Committee formation: At enterprise-level workplaces, a three-member complaints committee with proportional representation should be formed to investigate cases related to sexual harassment.

A provision should be made for the complaints committee to specify interim compensation.

A provision should be made so that a party that is dissatisfied with the decision of the complaints committee can appeal to the labour court, rather than to the chief district officer.

A provision should be made such that an accused person should him/herself be able to provide the proof of innocence.

Inclusion of the third gender: The proposed bill for mitigating sexual harassment in the workspace looks at issues through a male/female dichotomy. It should be amended to include the third gender.

Widespread awareness: The bill should include a provision to encourage the Government of Nepal to promote widespread awareness about issues pertaining to sexual harassment in the workplace.

The main responsibility to prevent sexual harassment in the workplace lies with the organisation itself: In any organisation, the administration should be made responsible for making appropriate provisions to control or mitigate instances of sexual harassment in the workplace, to develop mechanisms to resolve disputes, to take action against offenders, and to provide compensation to victims. The following provisions should be made in particular:

a) A workplace should be in an open environment.

b) A CCTV camera should be kept in every workplace.

c) A handbook of regulations regarding sexual harassment should be made available to each employee.

The administrator shall be responsible:

A provision should be added to hold the administrator responsible if he or she does not put in measures to mitigate sexual harassment in the workplace or if he or she takes no action against an offending party after becoming or being made aware of an incident regarding sexual harassment in the workplace. Furthermore, a provision should be added to allow the filing of cases in the labour court in cases involving the unorganised sector.

This recommendation paper prepared by legal expert Mira Kumari Dhungana for the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Bishal Khanal, Sandhya Basnet, Kalpana Bishwokarma, Sarada Gurung, Bhupendra Hajdar, former CA Gopal Thakur, Uma Tamang, and Pragati Sharma, as well as Sabin Rana, Phurpa Tamang, Ganesh Datta Bhatta, B.P. Bhandari, and Dr. Bipin Adhikari.

This research has been conducted with the help of The Asia Foundation. But the thoughts presented here belong to the author; they do not represent the Foundation or its point of view.